James v. Grand Lake M. Health ( 1998 )


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  •                                                                       F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           SEP 24 1998
                                 TENTH CIRCUIT
                            __________________________                 PATRICK FISHER
                                                                                Clerk
    
    JEANNIE JAMES,
    
          Plaintiff-Appellant,
    
    v.                                                             No. 97-5157
                                                                   (N.D. Okla.)
    GRAND LAKE MENTAL HEALTH CENTER,                        (D.Ct. No. 96-CV-631-C)
    INC.; PAULA VELLA, individually and in her
    capacity as employee of Grand Lake Mental Health
    Center, Inc.; SIOUX GRENINGER, individually
    and in her official capacity as a police officer of
    the City of Pryor, Oklahoma; RONNIE BATT,
    individually and in his official capacity as a police
    officer of the City of Pryor, Oklahoma; TRENT
    HUMPHREY, individually and in his official
    capacity as a police officer of the City of Pryor,
    Oklahoma; CITY OF PRYOR; BAPTIST
    HEALTHCARE CORPORATION, d/b/a Mayes
    County Medical Center; CHRISTOPHER
    DELONG, Dr., sued as Dr. Christopher Delong,
    D.O., individually and in his capacity as employee
    of Mayes County Medical Center; K.W.
    SOUTHERN, Dr., sued as Dr. K.W. Southern,
    D.O., individually and in his capacity as employee
    of Eastern State Hospital, Vinita, Oklahoma; JOE
    FERMO, Dr., sued as Dr. Joe Fermo, M.D.,
    individually and in his capacity as employee of
    Eastern States Hospital, Vinita, Oklahoma,
    
          Defendants-Appellees.
                                ORDER AND JUDGMENT *
    
    
    Before BALDOCK, BRORBY, and LUCERO, Circuit Judges.
    
    
    
          Jeannie James appeals the district court’s adverse rulings on her 28 U.S.C.
    
    § 1983 claims against nine defendants stemming from her involuntary committal
    
    to a state mental hospital. We exercise jurisdiction over her appeal pursuant to 28
    
    U.S.C. § 1291 and affirm.
    
    
    
          For background purposes, we will provide a general description of the
    
    incident underlying Ms. James’ claims. In addition to the general information
    
    discussed below, Ms. James makes many specific allegations regarding acts of
    
    maliciousness and bad faith by the defendants. Although we view the facts in the
    
    light most favorable to Ms. James, as required, see Yoder v. Honeywell Inc., 
    104 F.3d 1215
    , 1224 (10th Cir.) (construing facts in light most favorable to plaintiff
    
    when reviewing dismissal pursuant to Fed. R. Civ. P. 12(b)(6)), cert. denied, 
    118 S. Ct. 55
     (1997); Kaul v. Stephan, 
    83 F.3d 1208
    , 1212 (10th Cir. 1996)
    
    
    
          *
              This order and judgment is not binding precedent except under the doctrines of
    law of the case, res judicata and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    
                                              -2-
    (examining factual record in light most favorable to nonmovant when reviewing
    
    grant of summary judgment), discussion of many of these allegations is
    
    unnecessary. To the extent any of Ms. James specific allegations are relevant to
    
    the disposition of a particular issue, they will be discussed in the section
    
    pertaining to that issue.
    
    
    
          In 1995, Ms. James was receiving outpatient treatment for depression at
    
    Grand Lake Mental Health Center (Grand Lake) in Pryor, Oklahoma. On July 11,
    
    1995, a therapist at Grand Lake, defendant Paula Vella, determined Ms. James
    
    needed to be detained and transported to Oklahoma Eastern State Hospital,
    
    pursuant to the Oklahoma Emergency Detention and Protective Custody Act,
    
    Okla. Stat. tit. 43A, §§ 5-206 to 5-212. That Act provides for the emergency
    
    detention of persons who appear to be mentally ill. See Okla. Stat. tit. 43A, § 5-
    
    207. Ms. Vella called the local police department for assistance. An officer of
    
    the City of Pryor Police Department, defendant Sioux Greninger, arrived at Grand
    
    Lake, picked up Ms. James, and took her to a local hospital, Mayes County
    
    Medical Center (the Medical Center). Once at the Medical Center, Officer
    
    Greninger escorted Ms. James into the emergency room.
    
    
    
          Ms. Vella went to the hospital separately and dropped off a completed form
    
    
    
                                              -3-
    entitled “Referral to Eastern State Hospital.” In addition, while at the hospital,
    
    Ms. Vella completed portions of a separate statement that was to be filled out by
    
    the examining doctor pursuant to the emergency detention act. See Okla. Stat. tit.
    
    43A, § 5-208A.
    
    
    
          The doctor on duty in the emergency room, defendant Christopher Delong,
    
    completed the remaining portions of the emergency detention act statement and
    
    signed it, under the words: “Upon person [sic] examination of Jeannie James, I
    
    am of the opinion that this person is a person requiring treatment, and should be
    
    held in emergency detention, as provided by law.” A hospital official collected
    
    the pertinent paperwork and provided copies to Officer Greninger. Officer
    
    Greninger, whose shift was ending, handed the paperwork to another officer,
    
    defendant Trent Humphrey, and told him to take Ms. James to Eastern State
    
    Hospital. Officer Humphrey took Ms. James to Eastern State in his cruiser.
    
    
    
          Upon arrival at Eastern State, Ms. James was examined by a psychiatrist,
    
    defendant Joe Fermo. Following the examination, Dr. Fermo certified that Ms.
    
    James should be admitted to the hospital pursuant to the emergency detention
    
    statute, even though the results of his examination were generally favorable. The
    
    following day, July 12, 1995, Ms. James was examined by another Eastern State
    
    
    
                                             -4-
    doctor, defendant K.W. Southern. Dr. Southern also certified that Ms. James
    
    should be admitted pursuant to the emergency detention statute. Dr. Southern
    
    filled out a petition for an emergency detention order and had it filed in state
    
    court on July 14, 1995.
    
    
    
          Ms. James remained at Eastern State until July 18, 1995, when she was
    
    discharged pursuant to a court order, following an examination by a court-
    
    appointed commissioner.
    
    
    
          Ms. James filed a complaint in district court pursuant, in part, to 42 U.S.C.
    
    § 1983 (alleging underlying violations of her Fifth and Fourteenth Amendment
    
    rights). In the complaint, she stated claims against the nine defendants involved
    
    in this appeal: Ms. Vella, Grand Lake Mental Health Center, Officer Greninger,
    
    Officer Humphrey, the City of Pryor, Dr. Delong, Mayes County Medical Center,
    
    Dr. Fermo, and Dr. Southern. In six separate orders, the district court disposed of
    
    the claims against all of the defendants. Ms. James appeals those adverse
    
    dispositions.
    
    
    
    
                                              -5-
    The claims against Ms. Vella and Grand Lake
    
           In her complaint, Ms. James alleged Ms. Vella and Grand Lake wrongfully
    
    caused her to be confined pursuant to Oklahoma’s emergency detention statute “in
    
    order to satisfy [Ms. Vella’s] own sadistic desires and to make an example to
    
    others.” 1 This, claimed Ms. James, constituted a deprivation of her right to due
    
    process as guaranteed by the Fourteenth Amendment, in violation of § 1983. 2
    
    
    
           On July 3, 1997, the district court dismissed the claims against Ms. Vella
    
    and Grand Lake based on its finding that Ms. Vella and Grand Lake were not
    
    “state actors.” In making its decision, the district court relied on Pino v. Higgs,
    
    
    75 F.3d 1461
    , 1465 (10th Cir. 1996), in which this court held a private therapist
    
    was not a “state actor” in circumstances similar to this case. The district court
    
    acted in response to a Motion to Dismiss for Lack of Subject Matter Jurisdiction,
    
    or in the Alternative, Motion for Summary Judgment. It is not clear from the
    
    
    
           1
              Ms. James says Ms. Vella’s decision to commit her was intended as punishment.
    Ms. Vella claims she was concerned because Ms. James appeared to be unable to take
    precautions to protect herself from her abusive husband. Resolution of this question is
    immaterial to our decision in this case because the motives underlying Ms. Vella’s actions
    are irrelevant to whether she was a state actor.
    
           2
              In addition, Ms. James inexplicably alleged a Fifth Amendment violation. The
    restrictions found in the Fifth Amendment do not apply to the defendants in this case (i.e.,
    they are not federal actors).
    
    
                                                -6-
    order whether the district court based its decision on the motion to dismiss or the
    
    motion for summary judgment. Because the district court discussed facts not in
    
    the complaint, we will assume it was a grant of summary judgment.
    
    
    
          We review the grant of summary judgment de novo, applying the same
    
    well-recognized legal standard used by the district court pursuant to Federal Rule
    
    of Civil Procedure 56(c). See Kaul, 83 F.3d at 1212. We examine the record in
    
    the light most favorable to the nonmoving party. See Thomas v. IBM, 
    48 F.3d 478
    , 484 (10th Cir. 1995).
    
    
    
          In order to bring a § 1983 claim, a plaintiff must demonstrate that the
    
    defendant acted “under color of any statute, ordinance, regulation, custom, or
    
    usage, of any State” to deprive the plaintiff of “any rights, privileges, or
    
    immunities secured by the Constitution and laws” of the United States. 42 U.S.C.
    
    § 1983. As mentioned above, Ms. James’ claim against Ms. Vella was premised
    
    on a deprivation of rights guaranteed by the Fourteenth Amendment. 3 “Because
    
          3
              The Fourteenth Amendment of the Constitution states, in part:
    
          No State shall make or enforce any law which shall abridge the privileges or
          immunities of citizens of the United States; nor shall any State deprive any
          person of life, liberty, or property, without due process of law; nor deny to
          any person within its jurisdiction the equal protection of the laws.
    
    U.S. Const. amend. XIV, § 1. This Amendment embodies three protections:
    
                                                -7-
    the [Fourteenth] Amendment is directed at the States, it can be violated only by
    
    conduct that may be fairly characterized as ‘state action.’” Lugar v. Edmondson
    
    Oil Co., 
    457 U.S. 922
    , 924 (1982).
    
    
    
          At the time of the incident in question, Ms. Vella was a private therapist
    
    working for a private mental health facility; in other words, she was a private
    
    individual. “In order to hold a private individual liable under § 1983 for a
    
    constitutional violation requiring state action, a plaintiff must show ... that the
    
    individual’s conduct is ‘fairly attributable to the State.’” Pino 75 F.3d at 1465
    
    (quoting Lugar, 457 U.S. at 937).
    
    
    
          In Pino, a private therapist notified the police that the plaintiff in that case
    
    was acting irrationally and might need to be held for an emergency mental health
    
    evaluation. Pino, 75 F.3d at 1463-64. The plaintiff in that case was taken by the
    
    police to a hospital for evaluation and ultimately admitted against her will. Id.
    
    
    
          (1) a procedural due process protection requiring the state to provide
          individuals with some type of process before depriving them of their life,
          liberty, or property; (2) a substantive due process protection, which protects
          individuals from arbitrary acts that deprive them of life, liberty, or property;
          and (3) an incorporation of specific protections afforded by the Bill of
          Rights against the states.
    
    Miller v. Campbell County, 
    945 F.2d 348
    , 352 (10th Cir. 1991), cert. denied, 
    502 U.S. 1096
     (1992). Ms. James’ claims only implicate the first and second protections.
    
                                                -8-
    After her release, the plaintiff filed a § 1983 claim against the therapist, among
    
    others, for violating her Fourth and Fourteenth Amendment rights. Id. at 1464-
    
    65. Finding the therapist’s conduct did not rise to the level of state action and the
    
    therapist “did not exercise ‘some right or privilege’ or act under a ‘rule of
    
    conduct’ created by state law,” this court ruled the therapist was not liable under
    
    § 1983. Id. at 1465.
    
    
    
          On appeal, Ms. James argues Pino is distinguishable. She contends Ms.
    
    Vella did more than simply advise the police officers of the situation. The City of
    
    Pryor Police Department had a policy of transporting patients for emergency
    
    detention without question whenever someone from Grand Lake requested
    
    assistance. As this was the case, Ms. James argues, Ms. Vella essentially directed
    
    the officers to take her to the hospital for evaluation, in contrast to the Pino case,
    
    where the court found the therapist merely assisted the police officers in making
    
    an independent judgment as to whether the plaintiff in that case needed to be
    
    detained for evaluation. Pino, 75 F.3d at 1466. Ms. James contends this decision
    
    by the City to abdicate its independent judgment to Grand Lake elevates Ms.
    
    Vella to the level of a state actor. 4 We disagree.
    
          4
             Ms. James also appears to argue this case is distinguishable from Pino because
    of the reprehensibility of Ms. Vella’s actions. Specifically, Ms. James alleges Ms. Vella
    regularly threatened patients and lied in order to get Ms. James committed. These
    allegations have nothing to do with deciding whether Ms. Vella’s behavior constitutes
    
                                                -9-
          In determining whether a private individual can violate the Fourteenth
    
    Amendment, courts look at two conditions.
    
          First, the “deprivation must be caused by the exercise of some right
          or privilege created by the State or by a rule of conduct imposed by
          the State or by a person for whom the State is responsible.” ...
          Second, the private party must have “acted together with or ...
          obtained significant aid from state officials” or engaged in conduct
          “otherwise chargeable to the State.”
    
    Wyatt v. Cole, 
    504 U.S. 158
    , 162 (1992) (quoting Lugar, 457 U.S. at 937). Both
    
    conditions must be met for a private individual to be liable, and the general
    
    presumption is against extending liability. See Harvey v. Harvey, 
    949 F.2d 1127
    ,
    
    1130 (11th Cir. 1992) (“Only in rare circumstances can a private party be viewed
    
    as a ‘state actor’ for [§] 1983 purposes.”).
    
    
    
          We do not believe Ms. James can get past the first condition. As noted
    
    above, this Circuit has found that a private therapist in a similar case “did not
    
    exercise ‘some right or privilege’ or act under a ‘rule of conduct’ created by state
    
    law” by calling the police and advising them to detain a woman for an emergency
    
    detention evaluation. Pino, 75 F.3d at 1465. Although the police policy of
    
    declining to exercise independent judgment adds a new element, it does not
    
    change the result. Because the policy was created by the City, not the State, it
    
    
    
    state action for Fourteenth Amendment and § 1983 purposes.
    
    
                                             -10-
    only implicates the aspect of the first condition involving a rule of conduct
    
    imposed by a person for whom the State is responsible. Therefore, the question
    
    we must resolve is whether the City’s policy created a rule of conduct,
    
    distinguishing this case from our decision in Pino.
    
    
    
          The Supreme Court has made it clear that the rule of conduct must dictate
    
    the result of the private individual’s decision to elevate the individual to a state
    
    actor. See Blum v. Yaretsky, 
    457 U.S. 991
    , 1009 (1982) (“The decisions made by
    
    the [defendant] ... were framed in accordance with professional canons of ethics,
    
    rather than dictated by any rule of conduct imposed by the State.”); Rendell-Baker
    
    v. Kohn, 
    457 U.S. 830
    , 844 (1982) (White, J., concurring) (“For me, the critical
    
    factor is the absence of any allegation that the employment decision was itself
    
    based upon some rule of conduct or policy put forth by the State.”). There is no
    
    suggestion here that Ms. Vella’s decision to send Ms. James for an emergency
    
    detention evaluation was dictated by or based on the City’s policy of not
    
    questioning emergency detention requests by Grand Lake authorities. In fact, the
    
    allegation is that the decision was based on a personal vindictiveness. The City’s
    
    policy may have made it easier for Ms. Vella to subject Ms. James to detention,
    
    but it certainly did not direct her decision in any way.
    
    
    
    
                                              -11-
             Furthermore, another section of Pino than that discussed by Ms. James
    
    dictates that we find Ms. Vella not to be a state actor. In Pino, this court found a
    
    private physician working in a private hospital, who certified an individual for
    
    involuntary commitment pursuant to a state statute, and whose actions directly
    
    lead the police to detain the individual, was not a state actor for § 1983 purposes.
    
    Pino, 75 F.3d at 1466-67. If a doctor’s certification of a patient for transport to a
    
    hospital for involuntary commitment (certainly more than mere advice) does not
    
    constitute state action, we do not see how a therapist’s request for transportation
    
    of a patient to a hospital for an examination to determine if involuntary
    
    commitment is warranted rises to that level, regardless of police policy.
    
    
    
             Our decision in Pino controls this claim. Ms. Vella “did not exercise ‘some
    
    right or privilege’ or act under a ‘rule of conduct’ created by state law.” Pino, 75
    
    F.3d at 1465. We affirm the district court’s dismissal of the claim against Ms.
    
    Vella.
    
    
    
             For the same reasons, Grand Lake is not a state actor for § 1983 purposes.
    
    We affirm the district court’s dismissal of the claim against Grand Lake.
    
    
    
    
                                              -12-
    The claims against Officers Greninger and Humphrey and the City of Pryor
    
           On July 10, 1997, the district court granted a motion for summary judgment
    
    filed by Officers Greninger and Humphrey and the City of Pryor. The court
    
    determined the officers were “entitled to summary judgment on their qualified
    
    immunity defense because [Ms. James] has failed to allege facts sufficient to
    
    show that the police officers violated any of plaintiff’s constitutional rights.” The
    
    court found that while the officers’ actions may have constituted technical
    
    violations of state law, they did not deny Ms. James due process of law. In
    
    addition, the district court determined Ms. James failed to show the officers acted
    
    with the necessary reckless intent or deliberate indifference to her liberty
    
    interests.
    
    
    
           Public officials are entitled to qualified immunity from § 1983 claims if
    
    their actions did not “violate clearly established statutory or constitutional rights
    
    of which a reasonable person would have known.” Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982). We apply special rules in reviewing a grant or denial of
    
    summary judgment when a defense of qualified immunity has been raised. See
    
    Pino, 75 F.3d at 1467. “‘In analyzing qualified immunity claims, we first ask if a
    
    plaintiff has asserted the violation of a constitutional right at all, and then assess
    
    whether that right was clearly established at the time of [the] defendant’s
    
    
    
                                             -13-
    actions.’” Id. (quoting Gehl Group v. Koby, 
    63 F.3d 1528
    , 1533 (10th Cir.
    
    1995)). On review of grants of summary judgment, we apply the de novo standard
    
    mentioned earlier.
    
    
    
          Citing Pino, Ms. James argues the appropriate standard for determining
    
    whether the officers have qualified immunity in this case is whether they had
    
    probable cause to believe an emergency detention was necessary. Because
    
    Officers Greninger and Humphrey did not have probable cause to detain her, Ms.
    
    James’ argument goes, their conduct constituted “deliberate indifference,”
    
    vitiating their qualified immunity protections. There is a problem with the
    
    probable cause standard advanced by Ms. James: it applies to allegations of
    
    Fourth Amendment violations, see Pino, 75 F.3d at 1467-68, whereas Ms. James
    
    alleged Fourteenth Amendment violations. In her Reply Brief, Ms. James
    
    provides five reason why this court should consider her Fourth Amendment claim.
    
    All lack merit. 5 The district court made its decision based on Ms. James’
    
          5
              First, Ms. James argues the Fourth Amendment claim was included in a Pretrial
    Order. As this case never went to trial and no pretrial conference was held, the Pretrial
    Order was never entered by the district court. See Fed. R. Civ. P. 16(e). Therefore, it
    does not control. Second, Ms. James contends the allegations in her Complaint are
    sufficient to support a Fourth Amendment violation. This is irrelevant; just because the
    facts alleged in a complaint would support a claim does not mean the claim has been
    made. Third, Ms. James argues she used the Pino case in her brief to the district court on
    this issue. The case did not apply to her due process arguments then and does not apply
    now. Fourth, Ms. James contends the defendants “argue[d] the Fourth Amendment in
    their Brief to the Trial Court.” This is not true. In their brief, the defendants stated:
    
                                               -14-
    allegation of a Fourteenth Amendment due process violation – not a Fourth
    
    Amendment unlawful seizure violation. We will not read a Fourth Amendment
    
    claim into the complaint at this stage.
    
    
    
          The Fourteenth Amendment provides both procedural due process and
    
    substantive due process protections. See County of Sacramento v. Lewis, ___
    
    U.S. ___, 
    118 S. Ct. 1708
    , 1713 (1998). The procedural due process protection
    
    requires “the state to provide individuals with some type of process before
    
    depriving them of their life, liberty, or property.” Miller v. Campbell County, 
    945 F.2d 348
    , 352 (10th Cir. 1991), cert. denied, 
    502 U.S. 1096
     (1992). The
    
    substantive due process protection prohibits arbitrary acts by the state that deprive
    
    individuals of their life, liberty, or property. Id. The liberty interest is clearly the
    
    one implicated by this case. It is unclear, however, whether Ms. James intended
    
    her claims to be based on the procedural or substantive protection, so we will
    
    address each in turn.
    
    
    
    
    “Unlike the plaintiff in Pino, James has not asserted a Fourth Amendment claim.... Thus,
    the ‘probable cause’ analysis from Pino is not applicable to this case.” Despite their
    inclusion of an alternative argument, the defendants made it perfectly clear they did not
    believe Fourth Amendment analysis applied to this case. And fifth, Ms. James argues this
    court should consider her Fourth Amendment claim because it remains city policy to rely
    on Grand Lake for a determination of whether an emergency detention is appropriate.
    The court can discern no cogent point in this last argument.
    
    
                                              -15-
          Procedural due process requires a two-step analysis. First, the court must
    
    determine if the plaintiff has been deprived of an interest in life, liberty, or
    
    property. Second, the court must determine how much process is due in light of
    
    that deprivation. We do not get beyond the first step.
    
    
    
          The Supreme Court has ruled that “mere lack of due care by a state official
    
    may [not] ‘deprive’ an individual of life, liberty, or property under the Fourteenth
    
    Amendment.” Daniels v. Williams, 
    474 U.S. 327
    , 330-31 (1986). Section 1983
    
    was not intended to replace state tort law actions. See Webber v. Mefford, 
    43 F.3d 1340
    , 1343 (10th Cir. 1994). For this reason, more than mere negligence is
    
    required for liability. Reckless or deliberate intent on the part of the government
    
    official is required to give rise to a Fourteenth Amendment violation actionable
    
    under § 1983. Id. “[R]eckless intent is established if the actor was aware of a
    
    known or obvious risk that was so great that it was highly probable that serious
    
    harm would follow and he or she proceeded in conscious and unreasonable
    
    disregard of the consequences.” Medina v. City & County of Denver, 
    960 F.2d 1493
    , 1496 (10th Cir. 1992). “Deliberate indifference requires ‘a higher degree
    
    of fault than negligence, or even gross negligence.’” Hovater v. Robinson, 
    1 F.3d 1063
    , 1066 (10th Cir. 1993) (quoting Berry v. City of Muskogee, 
    900 F.2d 1489
    ,
    
    1495 (10th Cir. 1990)).
    
    
    
                                              -16-
          Ms. James contends the officers acted with deliberate indifference to her
    
    constitutional rights by transporting her without making an independent
    
    evaluation of her condition and without the proper paperwork. We disagree. The
    
    district court was correct in finding the officers did not act with the requisite
    
    intent. “[A]n official or municipality acts with deliberate indifference if its
    
    conduct (or adopted policy) disregards a known or obvious risk that is very likely
    
    to result in the violation of [the plaintiff’s] constitutional rights.” Berry, 900
    
    F.2d at 1496. Even assuming the actions of the officers were not in strict
    
    compliance with all the requirements of the emergency detention statute, their
    
    actions did not rise to the level of disregarding a known or obvious risk likely to
    
    result in a violation of Ms. James’ constitutional rights. Both a mental health
    
    professional and a doctor told the officers, directly or indirectly, Ms. James
    
    needed to be held and transported pursuant to the emergency detention act. We
    
    will not require officers to suspect the motives of health care professionals to
    
    challenge professional medical determinations. The officers simply were not
    
    disregarding a known or obvious risk by deferring to the judgment of the health
    
    professionals. Therefore, their actions did not constitute a deprivation of Ms.
    
    James’ Fourteenth Amendment right to due process.
    
    
    
          Ms. James’ claim that the officers violated her substantive due process
    
    
    
                                              -17-
    rights cannot stand. Because the Supreme Court is reluctant to expand the range
    
    of substantive due process, “[w]here a particular amendment provides an explicit
    
    textual source of constitutional protection against a particular sort of government
    
    behavior, that Amendment, not the more generalized notion of substantive due
    
    process, must be the guide for analyzing these claims.” Sacramento, ___ U.S. at
    
    ___, 118 S. Ct. at 1714 (quoting Albright v. Oliver, 
    510 U.S. 266
    , 273 (1994))
    
    (alteration in original). Accordingly, this Circuit has ruled claims that an
    
    individual has been unreasonably detained and transported in the involuntary
    
    commitment context must be brought under the Fourth Amendment. Pino, 75
    
    F.3d at 1469. Even if Ms. James had stated her claims properly, her allegations
    
    would not rise to the “shocks the conscience” standard articulated by the Supreme
    
    Court for substantive due process claims. See Sacramento, ___ U.S. at ___, 118
    
    S. Ct. at 1716.
    
    
    
          For these reasons, we affirm the district court’s resolution of the claims
    
    against Officers Greninger and Humphrey.
    
    
    
          For the reasons above, the district court also correctly granted summary
    
    judgment in favor of the City of Pryor.
    
    
    
    
                                              -18-
    The claims against Dr. Delong and the Medical Center
    
          On May 15, 1997, the district court granted a motion for summary judgment
    
    in favor of Dr. Delong based on its finding that the doctor was not a state actor
    
    for § 1983 and Fourteenth Amendment purposes. On review, we apply the de
    
    novo standard discussed earlier.
    
    
    
          Dr. Delong is a private physician working at a private hospital. As we
    
    mentioned above, a plaintiff must demonstrate the defendant’s conduct is fairly
    
    attributable to the State to establish liability under § 1983 for a constitutional
    
    violation requiring state action. Pino 75 F.3d at 1465. The district court’s
    
    conclusion was premised on this court’s decision in Pino. In Pino, we held: “A
    
    private physician who certifies a person for purposes of [the state involuntary
    
    commitment statute] is not subject to § 1983 liability simply because a state
    
    police officer responds by transporting or detaining that person.” Id. at 1466.
    
    
    
          Ms. James argues the Pino rule does not protect Dr. Delong from liability
    
    because of his particularly “egregious” actions (e.g., never examining Ms. James
    
    and signing a document partially filled out by another person). Counsel for Ms.
    
    James does not make it clear why the egregiousness of his actions should have
    
    any effect on Dr. Delong’s status or non-status as a state actor. Ms. James also
    
    
    
                                             -19-
    argues Dr. Delong is a state actor because he was acting jointly with Ms. Vella.
    
    As Ms. Vella was not a state actor, this makes no difference. Because we see no
    
    reason why our decision in Pino should not control in this case, we affirm the
    
    district court’s summary judgment in favor of Dr. Delong.
    
    
    
          On February 27, 1997, the district court granted a motion to dismiss filed
    
    by the Medical Center based on its finding that the facts, as stated in the
    
    complaint, failed to establish a basis for relief. We review de novo a dismissal
    
    for failure to state a claim upon which relief can be granted. See Chemical
    
    Weapons Working Group, Inc. v. United States Dep’t of the Army, 
    111 F.3d 1485
    ,
    
    1490 (10th Cir. 1997).
    
    
    
          Ms. James argues that the Medical Center can be held liable for the acts of
    
    Dr. Delong based on its failure to supervise or train him. The Medical Center is a
    
    private entity. For the reasons we gave in upholding the dismissal of the claim
    
    against Dr. Delong, we affirm the district court’s disposition of the claim against
    
    the Medical Center. 6
    
          6
              In this section, counsel for Ms. James argues the Medical Center had a duty to
    train Dr. Delong and that it was obligated to comply with the provisions of the emergency
    detention statute because Dr. Delong and the hospital regularly conducted emergency
    detention evaluations. Counsel supports this position with a claim that Dr. Delong had
    performed 50-100 of these evaluations. Reference to the portion of Dr. Delong’s
    deposition, to which counsel cites in support of this statement, demonstrates this to be a
    
                                               -20-
    The claims against Drs. Fermo and Southern
    
          The district court awarded summary judgment in favor of Dr. Fermo. The
    
    district court determined Dr. Fermo was entitled to qualified immunity because
    
    Ms. James’ allegations did not rise to the level of constitutional deprivation,
    
    because the doctor’s actions did not demonstrate reckless intent, and because the
    
    violation claimed by Ms. James was not contrary to “clearly established law.” In
    
    a separate order, the district court dismissed Ms. James’ claim against Dr.
    
    Southern, finding he was entitled to qualified immunity. The district court
    
    determined Dr. Southern’s actions may have been negligent, but they did not rise
    
    to the level of constitutional deprivation. In addition, the district court held Dr.
    
    Southern’s actions were not a violation of clearly established law.
    
    
    
          As discussed above, a public official is entitled to qualified immunity if his
    
    actions did not “violate clearly established statutory or constitutional rights of
    
    
    
    gross misstatement:
    
          Q. Since 1987, give me a ballpark idea of the number of emergency
          detention orders that you’ve had dealings with.
          A. I couldn’t – I couldn’t put a number on it.
          Q. 50, 100?
          A. I couldn’t say.
    
    In other words, counsel is supporting his argument with reference to a number he made
    up.
    
    
                                             -21-
    which a reasonable person would have known.” Harlow, 457 U.S. at 818. These
    
    two doctors were working for the state and were acting in their official capacity
    
    during their interactions with Ms. James, so there is no dispute that they are
    
    public officials who are entitled to raise a qualified immunity defense. When
    
    reviewing a grant of summary judgment based on a defense of qualified immunity,
    
    we first look to see if the plaintiff has asserted the violation of a constitutional
    
    right, and then determine if that right was clearly established at the time of the
    
    defendant’s actions. Pino, 75 F.3d at 1467. We apply the summary judgment de
    
    novo standard mentioned earlier.
    
    
    
          It is unclear whether Ms. James intended her claims against the doctors to
    
    be based on the procedural or substantive guarantees of the Fourteenth
    
    Amendment, so we will look at each in turn.
    
    
    
          As mentioned in the section dealing with the claims against the officers,
    
    when considering whether a violation of an individual’s procedural due process
    
    rights occurred, the court must first determine if the plaintiff has been deprived of
    
    an interest in life, liberty, or property, and then determine how much process is
    
    due in light of that deprivation. As with our analysis concerning the officers, we
    
    need not get beyond the first step.
    
    
    
                                              -22-
           Reckless or deliberate intent on the part of the government official is
    
    required to give rise to a deprivation of a protected interest. See Webber, 43 F.3d
    
    at 1343. We agree with the district court that the actions of the doctors do not
    
    rise to this level.
    
    
    
           Ms. James argues there was nothing in Dr. Fermo’s evaluation notes to
    
    justify his certification to a reasonable certainty that without treatment she would
    
    be unable to protect herself from injury. The evaluation notes reveal Dr. Fermo
    
    knew Ms. James had a lengthy history of depression, she was abused by her
    
    husband (by putting a knife to her neck, putting a gun to her head, and kicking
    
    her) and was fearful of further abuse, and she got panicky to the point where she
    
    was unable to cope with being alone. In addition, Dr. Fermo had the Licensed
    
    Mental Health Professional’s Statement signed by Dr. Delong and the Grand Lake
    
    Referral to Eastern State Hospital filled out by Ms. Vella. We are not qualified to
    
    determine whether Dr. Fermo’s certification was supportable professionally given
    
    the results of his evaluation, but in light of the items mentioned above, we are
    
    confident his actions did not rise to the level of “reckless intent” or “deliberate
    
    indifference.”
    
    
    
           On appeal, Ms. James argues that because Dr. Southern certified Ms. James
    
    
    
                                             -23-
    for emergency detention despite the favorable results of his evaluation, filed a
    
    Petition for Protective Custody and Treatment containing false statements, and
    
    intentionally delayed before filing the Petition, he is not entitled to qualified
    
    immunity. We agree with the district court that such allegations do not rise to the
    
    level of a constitutional deprivation. The delay in filing the Petition was
    
    approved by a judicial officer. The alleged false statements stem from a form
    
    statement signed by Dr. Southern. Counsel does not identify these false statement
    
    in his brief, but a review of the complaint shows they stem from Ms. James’
    
    contention that she did not meet the requirements for detention. Dr. Southern’s
    
    certification that Ms. James met the standard for emergency detention, even if not
    
    properly supported by documentation, does not rise to the level of reckless or
    
    outrageous conduct. A disagreement over the basis of a medical evaluation does
    
    not suffice to support an allegation of reckless or outrageous conduct.
    
    
    
          Any claim against the doctors based on a violation of the Fourteenth
    
    Amendment substantive due process protection fails because Ms. James’
    
    allegations do not rise to the “shocks the conscience” standard articulated by the
    
    Supreme Court for substantive due process claims. See Sacramento, ___ U.S. at
    
    ___, 118 S. Ct. at 1716.
    
    
    
    
                                              -24-
          For the reasons above, the district court’s dispositions of the claims against
    
    Dr. Fermo and Dr. Southern are affirmed.
    
    
    
          Before concluding, we must discuss one unfortunate matter. We are
    
    concerned about two particularly egregious mischaracterizations of the record by
    
    Ms. James’ counsel. One is counsel’s repeated statement that Dr. Delong had
    
    performed 50-100 emergency detention evaluations. The record shows this
    
    number to be counsel’s own unconfirmed estimate. The other is counsel’s
    
    statement, in support of his argument that a Fourth Amendment claim exists, that
    
    the City and the officers “argue[d] the Fourth Amendment in their Brief to the
    
    Trial Court, contending that under Pino ... the actions of the police officers were
    
    reasonable.” That brief makes perfectly clear that the City and the officers did
    
    not believe the Fourth Amendment applied and that the section of the brief quoted
    
    by counsel was made in the alternative.
    
    
    
          Neither of these characterizations were even close to being arguably true
    
    and both were material to counsel’s arguments. We find this troubling, to say the
    
    least. Therefore, pursuant to Federal Rule of Appellate Procedure 46(c),
    
    appellant’s counsel shall show cause why this court should not impose appropriate
    
    disciplinary action for these apparent attempts to mislead. Counsel’s response
    
    
    
                                              -25-
    shall not exceed ten pages and shall be filed with the Clerk of this court within
    
    fourteen days of the issuance of this order.
    
    
    
          Section 1983 was never intended to create a federal tort scheme to right all
    
    wrongs. If the facts alleged by Ms. James are true, this is a truly disturbing case.
    
    However, this decision concerns only whether these defendants are liable pursuant
    
    to § 1983, which is a wholly separate question from whether there are any state
    
    law remedies available or whether the defendants deserve to be liable. If these
    
    allegations are true, we can only hope the wrongs against Ms. James will be
    
    redressed in an appropriate forum. The decisions of the district court are
    
    AFFIRMED.
    
    
    
                                            Entered by the Court:
    
                                            WADE BRORBY
                                            United States Circuit Judge
    
    
    
    
                                             -26-